General principles

Road has been defined as:

  • 'a highway for traffic' - a public road on which all have a right to pass, and
  • 'a right to passage along a certain route and the physical substance supporting the passengers'. [see Hallmann para 6.1]

Road in its legal sense applies to all types of thoroughfares e.g. roads, lanes, pathways. The Roads Act 1993 does not specify any minimum widths, which would distinguish lanes or pathways from other public roads. A site is a road if persons, other than the owner, have a right of passage which cannot be terminated at the will of the owner. Road includes:

  • the airspace above the surface of the road
  • the soil beneath the surface of the road, and
  • any bridge, tunnel causeway, road-ferry, ford or other work or structure forming part of the road.

Roads can be separated into several categories:

Private roads

A road restricted in use to a limited class of person (ie not to all members of the public) or to a limited period of time.

Roads depicted in private subdivision plans dated prior to January 1920 are treated as private roads unless subsequently vested in the council as public road.

The fee of a private road not vested as public road remains with the original landowner - see Right to show frontage

Public roads

A road opened or dedicated for the free right of passage of the public on foot, in a vehicle, or otherwise, (together with the right to drive stock or other animals along its length) and declared to be a public road for the purposes of the Roads Act 1993.

Crown roads

A public road under the care and control Crown Lands (for the Minister Administering the Crown Lands Act 1989) which remains Crown land. Crown public roads include Crown Portion boundary and reserved roads. These roads cannot be sold. A Crown road can only be dealt with upon alienation from the Crown.

Legislative base for roads

The Roads Act 1993 (the Act), commenced on 1 July 1993 and superseded the roads provisions of the Crown and Other Roads Act 1990, the State Roads Act 1986, the Local Government Act 1919, the Public Gates Act 1901 the Width of Roads and Lanes Act 1902 and the Traffic Safety (Lights and Hoardings) Act 1951.

It sets out procedures for opening and closing public roads, and establishes the authorities responsible for roads, ie the Roads and Maritime Services (RMS), the council of a local government area, Lord Howe Island Board or Crown Lands on behalf of the Minister Administering the Crown Lands Act 1989. Key Provisions include:

  • road opening/closing applications made before 1 July 1993 will continue under the provisions of the prior Act which created them
  • road opening applications by councils will be lodged directly with LPI
  • only roads authorities may apply to close a road. Applications must be made to Crown Lands.

Road authorities

A road authority is responsible for the functions conferred on it by the Roads Act 1993 and any other Act or law. Road authorities include:

Local councils

The Local Council is the roads authority for all public roads within its Local Government area, except for any freeway, Crown public road, or any public road declared to be under the control of some other authority e.g. the Sydney Harbour Foreshore Authority. The public roads are vested in fee simple in the Local Councils see s.145(3) Roads Act 1993.

Crown Lands

Crown Lands, on behalf of the Minister Administering the Crown Lands Act 1989, is the roads authority for all Crown public roads. All Crown public roads and all public roads outside a local government area, except for freeways, are vested in fee simple in the Crown as Crown land see s.145(2 and 4) Roads Act 1993. This also applies to public roads in the unincorporated area in the Western Division of the State.

Lord Howe Island Board

All roads on Lord Howe Island are administered by the Lord Howe Island Board. See s.263 Roads Act 1993.

Roads and Maritime Services

The RMS is the roads authority for all freeways. Freeways are vested in fee simple in the RMS see s.145(1) Roads Act 1993. The RTA also controls Tollways, Motorways, Transitways etc.

Specified public authorities

A public authority can be declared to be the roads authority for a specified public road, or for all roads within a specified area, except for a freeway or a Crown public road. Examples of public authorities that are declared to be the road authority for the land under their control include:

Transfer of public road to another Roads Authority

The Minister administering the Crown Lands Act 1989 may by an order published in the Government Gazette, transfer a public road (other than a Crown public road) from one roads authority to another. Such an order may not be made without the consent of both roads authorities. A Request form 11R (PDF 131KB) is required to effect the transfer on title.

Classification and status of roads

The requirements for the classification of roads are incorporated in Part 5 Roads Act 1993. Before a road can be classified, consultation between the various road authorities must have occurred in compliance with the Act.

The Minister may, by an order published in the Government Gazette, declare any public or private road as a Classified Road. These include:

  • Main road  A public road or any other road that passes through public open space and connects to another main road, a State highway, freeway, tollway or controlled access road see s.46 Roads Act 1993.
  • State highway  A main road which is a principal avenue of road communication within the State see s.47 Roads Act 1993.
  • Freeway  A main road designed to facilitate the free and unhindered movement of motor traffic. Motorways are included in this classification. All freeways are vested in fee simple in the RMS see s.48 Roads Act 1993.
  • Motorway  See Freeway.
  • Controlled access road  A road, usually a freeway or tollway, with access restricted from adjoining roads and parcels over some or all of its boundaries - see s.49 Roads Act 1993.
  • Secondary road  A public road which by carrying a substantial amount of through traffic, relieves a neighbouring main road of traffic - see s.50 Roads Act 1993.
  • Tourist road  A public road or any other road that passes through public open space to specifically facilitate access to places visited mainly by tourists - see s.51 Roads Act 1993.
  • Tollway  A road owned by the RMS and designed to facilitate the free and unhindered movement of traffic. A public road that is declared to be a tollway ceases to be public road by virtue of the declaration. A tollway has no right of public frontage and access from other roads is usually restricted - see s.52 Roads Act 1993.
  • Transitway  See s.52A Roads Act 1993.
  • State works  Any public road or structure (bridge, tunnel, road-ferry) which because of its size, nature, location or importance the Minister considers should be the responsibility of the State - see s.53 Roads Act 1993.

Note  The classification of a road does not affect the road authority in which it is vested. For example, all public roads (except freeways and tollways) are vested in the local council regardless of whether they are State Highways, Main Roads or local traffic roads.

Consents to road definition

For information on consents to road definition see Boundary consent and approvals page